On Tuesday, November 19, at 9:30 a. m., Baruch (Mordechai) Lebovits is due for another court appearance in connection with charges he molested a boy. He was convicted once, sentenced to 10-32 years and began serving his sentence but then got his conviction (but not his indictment) overturned on appeal. For almost two years the Brooklyn District Attorney, under the failed leadership of outgoing DA, Charles (Joe) Hynes, has kept the case in a holding pattern. But now, they seem intent on giving him a plea bargain for time served of a little over a year.
A number of us have signed onto a letter to the Honorable Judge Mark Dwyer addressing irregularities in the prosecution’s conduct in the hope of getting the judge to reject any such plea bargain.The letter and its many signers will probably be released later today, after it is delivered to the judge’s chambers.
I urge each and every one of you to try and be there to show solidarity with the victims of abuse by Lebovits.
In the meantime, I wanted to share the views of one of my colleagues, a legal expert, who drafted his thoughts for consideration by Judge Dwyer.
Facing retrial, Lebovits has a second opportunity to enter into a plea agreement. To be frank, we fear that Office of the Kings County District Attorney (KCDA) will seek approval of a plea requiring Lebovits to spend little or no additional time in prison. Given the facts and history of this case, such a disposition would be a miscarriage of justice. Given the history of the KCDA’s prosecution of sexual abusers in the Orthodox community, it would be a betrayal of other victims and their families, even if the victim in this case consents to the plea. We ask your Honor to send the crucial message to victims and witnesses that if they come forward seeking justice and enforcement of the law, the sacrifices they will have to make will not be in vain.
We understand a plea agreement represents a compromise
among legitimate competing concerns — an approximation of just punishment for the defendant, the prudent use of prosecutorial and judicial resources, and avoiding the hardship a trial imposes on victims and witnesses, all the more so in the case of a retrial.
Nevertheless, your Honor knows there is a third alternative to the painful choice of either imposing a grossly inadequate sentence or requiring the victim to endure a second trial. Most criminal defendants, at least when assisted by competent counsel, make rational choices, and Rabbi Lebovits is an intelligent man with excellent representation. If your Honor rejects an unreasonably lenient plea agreement, there is every reason to suppose that he will agree to one more in line with the realities of the evidence and the probable outcome of a second trial.
For Lebovits, “time served” amounts to approximately 10% of the minimum time he would have had to serve under his original sentence — a 90% “discount.” Justice DiMango imposed the longest sentence possible for the eight out of ten counts on which Lebovits was convicted, but supposing another judge might impose as little as half that, an 80% “discount” would still be surprising.
If KCDA really believed its chances of obtaining a conviction on retrial are as small as that kind of “discount” implies, it would be unethical for KCDA to pursue the case. Either Lebovits is outright innocent or he is guilty of multiple felonies; there is no tenable middle ground. If a jury believes the victim’s testimony beyond a reasonable doubt that Lebovits committed unlawful sexual acts with him, there is little reason for a jury to believe him only with respect to one or two of them.